Ross: Turning the Constitution on itself

In a hearing before the DC Court of Appeals, Donald Trump’s attorney argued that the First Amendment protects his political speech and that the gag order against him in the election tampering case is unconstitutional.

The reason the judge imposed the gag order was the fear that Trump’s social media posts could lead to threats against the court staff – as seemed to happen after his indictment last August when he posted on Truth Social, “If you go after me, I’m coming after you.”

A few days later, U.S. District Judge Tanya Chutkan received a voicemail death threat from a woman in Texas. But at yesterday’s hearing, Trump’s lawyer downplayed that threat, basically saying the caller was a crackpot.

“That particular threatener is an unemployed, mentally unstable, heavy alcoholic who sits on her couch, drinking beer all day, according to her father, never leaves the apartment and watches the news,” John Sauer, one of Trump’s attorneys, said. “She doesn’t get her news from social media. Then she makes angry threatening calls.”

So, no big deal and clearly no reason to gag his client.

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And that prompted Appeals Court Judge Patricia Millet to challenge Trump’s attorney with a series of hypothetical situations, including this one:

“So is it your position that if he communicates through a social media post, ‘Hey witness X, I know the prosecutor is bothering you trying to get you say bad things about me, be patriot. Don’t cooperate.’ Does that communication violate the release condition?” Circuit Judge Patricia Millett asked.

Trump’s attorney was very reluctant to answer.

“In the context of a political campaign, what is implied as a threat here is core political speech,” Sauer said. “I can’t emphasize that enough.”

Implying there were circumstances where that MIGHT actually be protected free speech.

This will all go before the Supreme Court – but what I was hearing from Trump’s lawyer is an argument that running for political office might allow you to invoke the First Amendment in novel ways. Because if the theme of your campaign is government reform, criticism of the court – which is an arm of the government – would be protected speech.

Imagine an America where drug traffickers could simply announce a presidential campaign, and then, while they’re out on bail, send out social media posts saying – “hey witness X – you might want to save some seats for us at your Thanksgiving dinner in case we stop by…”

And it would all be protected by the First Amendment.

Let Freedom Ring!

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